P.D.JOSE Vs. KARMALEETHA SABHA

JUDGEMENT

(1.) THE Order passed by the learned District Judge, Thrissur in O.P.No.304/2010 declining leave applied by appellants, two in number, to institute a suit under section 92 of the Code of Civil Procedure, for short the Code, is challenged in this appeal.

(2.) APPELLANTS sought leave to institute a suit for declaration that the parishioners of Thalore Edavaka including them are entitled to continue the Church, cemetery, community hall, kappela etc situate in the plaint property for performing their religious services in accordance with the decision taken under an agreement dated 26.6.1976 with defendants 1 and 2, and the defendants are bound to perform their obligations under that agreement. They also sought for other reliefs including revocation of an order issued by the second respondent in violation of the agreement dated 26.6.1976, and mandatory injunction directing defendants to perform 'nithyakurbana and other services' to the parishioners in the Church situate in plaint property. Application was resisted by respondents, first respondent filing a counter affidavit separately and respondents 2 to 4 in common, both of them contending that appellants (petitioners) are not entitled to the permission sought for to institute the suit. Learned District Judge after hearing both sides dismissed the application holding that there was no material to show the existence of a trust by dedication or implication and also breach of such trust. Applicants who sought for leave failed to show any interest in the scheduled property and also make out a prima facie case for grant of leave, was the conclusion formed by the learned District Judge to decline leave to institute the suit under section 92 of the Code.

(3.) FIRST respondent a congregation installed a monastry and later a Church in the plaint schedule property, and, it was dedicated in favour of Thalore Parish under Ext.A1 agreement dated 26.6.1976 entered into specifying the terms for functioning of the Parish and the second defendant, Archbishop,issued a notification recognising the parish, according to applicants. Second respondent later unilaterally took a decision on 31.10.2009 to shift the Church to another place which is against the terms and conditions under the agreement dated 26.6.1976, is the case of applicants to impute breach of trust for reliefs seeking leave to institute the suit. Respondents in their objections contended that there was no trust but only extending of permission to use the premise in the plaint property for religious worship till a new church is constructed for parishioners. Further more decision of the second respondent, who is the Arch Bishop, over construction of Chapel, place of worship etc cannot be challenged by parishioners.